Ragodo v. Berryhill

Filing 16

REPORT AND RECOMMENDATION ON MOTION AND CROSS MOTION FOR SUMMARY JUDGMENT re 12 MOTION for Summary Judgment filed by Veronica Ragodo and 14 Cross MOTION for Summary Judgment filed by Nancy A. Berryhill Objections to R&R due by 9/2/2019. Replies due by 9/9/2019. Signed by Magistrate Judge Mitchell D. Dembin on 8/19/2019.(sjm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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VERONICA RAGUDO,1

Case No.: 18cv1172-GPC-MDD
Plaintiff,

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v.

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ANDREW M. SAUL, Commissioner
of Social Security,2

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Defendant.

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REPORT AND
RECOMMENDATION ON MOTION
AND CROSS MOTION FOR
SUMMARY JUDGMENT
[ECF NOS. 12, 14]

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Plaintiff Veronica Ragudo (“Plaintiff”) filed this action pursuant to 42

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U.S.C. § 405(g) for judicial review of the final administrative decision of the

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Commissioner of the Social Security Administration (“Commissioner”)

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Plaintiff’s last name of Ragudo was misspelled on the Complaint as Ragodo. (ECF No.1).
Defendant noted the error in the Answer. (ECF No. 9). Several later filed pleadings have
the incorrect spelling but the Court has made the correction in this report and
recommendation.
2 Andrew M. Saul became Commissioner of Social Security on June 17, 2019 and is
therefore substituted for Nancy A. Berryhill as the Defendant in this action. See 42 U.S.C.
§ 405(g); Fed. R. Civ. P. 25(d),
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denying Plaintiff’s application for Disability Insurance Benefits under Title II

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of the Social Security Act (“Act”). (AR ).3
For the reasons expressed herein, the Court recommends the case be

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REMANDED to the ALJ for further analysis consistent with this Order. See

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42 U.S.C. § 405(g).
I. BACKGROUND

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Plaintiff was born on December 31, 1961. (AR 200). At the time

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the instant application was filed on May 7, 2014, Plaintiff was 51 years-old

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which categorized her as a person closely approaching advanced age. 20

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C.F.R. §§ 404.1563, 416.963.

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A.

Procedural History

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On May 7, 2014, Plaintiff protectively filed an application for a period of

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disability insurance benefits under Title II of the Social Security Act, alleging

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a disability beginning May 15, 2013. (AR 10). After her application was

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denied initially and upon reconsideration, Plaintiff requested an

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administrative hearing before an administrative law judge (“ALJ”). (Id.). An

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administrative hearing was held on April 5, 2017. Plaintiff appeared and was

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represented by attorney Dennis Devermont. Testimony was taken from

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Plaintiff and Mark Remus a vocational expert (“VE”). (Id.). On August 11,

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2017, the ALJ issued a decision denying Plaintiff’s claim for benefits. (AR 20).
On August 18, 2017, Plaintiff sought review with the Appeals Council.

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(AR 149). On April 9, 2018, the Appeals Council denied Plaintiff’s request for

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review and declared the Administrative Law Judge’s decision to be the final

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decision of the Commissioner of Social Security in Plaintiff’s case. (AR 1).

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“AR” refers to the Certified Administrative Record filed on September 7, 2018. (ECF No.
10).
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This timely civil action followed.
II. DISCUSSION
A. Legal Standard
Sections 405(g) and 1383(c)(3) of the Social Security Act allow

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unsuccessful applicants to seek judicial review of a final agency decision of

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the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial

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review is limited in that a denial of benefits will not be disturbed if it is

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supported by substantial evidence and contains no legal error. Id.; see also

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Batson v. Comm’r Soc. Sec. Admin, 359 F.3d 1190, 1993 (9th Cir. 2004).

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Substantial evidence means “more than a mere scintilla” but less

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than a preponderance. Sandqathe v. Chater, 108 F.3d 978, 980 (9th Cir.

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1997). “[I]t is such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d

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1035, 1039 (9th Cir. 1995)). The court must consider the record as a whole,

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weighing both the evidence that supports and detracts from the

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Commissioner’s conclusions. Desrosiers v. Sec’y of Health & Human Services,

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846 F.2d 573, 576 (9th Cir. 1988). If the evidence supports more than one

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rational interpretation, the court must uphold the ALJ’s decision. Batson,

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359 F.3d at 1193. When the evidence is inconclusive, “questions of credibility

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and resolution of conflicts in the testimony are functions solely of the

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Secretary.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

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Even if a reviewing court finds that substantial evidence supports

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the ALJ’s conclusions, the court must set aside the decision if the ALJ failed

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to apply the proper legal standards in weighing the evidence and reaching his

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or her decision. Batson, 359 F.3d at 1193. Section 405(g) permits a court to

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enter a judgment affirming, modifying or reversing the Commissioner’s

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decision. 42 U.S.C. § 405(g). The reviewing court may also remand the
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matter to the Social Security Administration for further proceedings. Id.
B. Summary of the ALJ’s Findings
In rendering his decision, the ALJ followed the Commissioner’s

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five step sequential evaluation process. See C.F.R. § 404.1520. At step one,

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the ALJ found that Plaintiff had not engaged in substantial gainful activity

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since May 15, 2013. (AR 12).

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At step two, the ALJ found that Plaintiff had the following severe
impairment: degenerative disc disease. (Id.).
At step three, the ALJ found that Plaintiff did not have an impairment

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or combination of impairments that met or medically equaled one of the

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impairments listed in the Commissioner’s Listing of Impairments. (AR 50).

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(citing 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),

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404.1525 and 404.1526).

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Next, after considering the entire record, the ALJ determined that

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Plaintiff had the “residual functional capacity to perform light work as

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defined in 20 C.F.R. 404.1567(b).” (AR 14). The Plaintiff could “sit six hours

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in an eight hour day; occasionally lift and/or carry twenty pounds, frequently

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lift and/or carry ten pounds; occasionally climb stairs, never climb ladders,

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scaffolds, ropes: occasionally balance, stoop, kneel, crouch, and crawl.

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Claimant must avoid concentrated exposure to unprotected height and

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dangerous or fast moving machinery.” (Id.). The ALJ said that this RFC

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assessment was “consistent with the objective medical evidence and other

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evidence….” (Id.). The ALJ also stated that he considered the opinion

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evidence in accordance with the requirements of 20 C.F.R. 404.1527. (Id.).

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The ALJ then proceeded to step four of the sequential evaluation

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process. He found Plaintiff was unable to perform her past relevant work.

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(AR 18). The ALJ also found “[t]ransferability of job skills is not material to
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the determination of disability because using the Medical-Vocational Rules as

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a framework supports a finding that the [plaintiff] is ‘not disabled,’ whether

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or not the [plaintiff] has transferable job skills. (See SSR 82-41 and 20 CFR

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Part 404, Subpart P, Appendix 2).” (AR 19). For the purposes of his step five

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determination, the ALJ accepted the testimony of the VE . The VE

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determined that Plaintiff could perform jobs identified by the VE that exist in

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significant numbers in the national economy. For example, vacuum dryer

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tender (DOT Code 553.685-016); pressure tank operator (DOT code 523.385-

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010); fermenter operator (DOT code 559-685-070). (AR 20).

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C. Issues in Dispute
The issues in dispute in this case are: 1) whether the ALJ erred by

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giving great weight to the opinion of the consultative examiner, Dr. Sabourin,

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M.D.; and 2) whether the ALJ failed to provide clear and convincing reasons

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to reject the subjective limitations of Plaintiff. (AR 4, 12).

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1. Weight given to consultative physician’s report

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Plaintiff contends that “[t]he ALJ erred in giving great weight to

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the opinion of the consultative examiner (CE) that did not review any

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records.” (ECF 12 at 4). Specifically, Plaintiff argues that the “CE’s opinion is

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not based on a review of the case record or any medical reports.” (Id. at 5).

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According to Plaintiff the CE stated that the medical records he reviewed

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consisted of the “medical source vender (sic) question page.” (Id. at 5).

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According to Plaintiff the “medical source vendor question page” consists of

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one page which could not have provided the CE with enough information

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upon which he could form a substantive opinion “in a case that has over 1050

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pages of medical records.” (Id.).

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Defendant argues that Plaintiff’s claim Dr. Sabourin erred in his
analysis “misconstrues the relevant regulations and case law” and “ignores
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the ALJ’s stated reasons for giving Dr. Sabourin’s opinion great weight.”

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(ECF 14 at 3).

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“The Ninth Circuit distinguishes among the opinions of three types of

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physicians: (1) those who treat the claimant (“treating physicians”); (2) those

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who examine but do not treat the claimant (“examining physicians”); and (3)

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those who neither examine nor treat the claimant (“non-examining

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physicians”). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). As a general

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rule, more weight is given to the opinion of a treating source than to that of a

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nontreating physician. Id. (citing Winans v. Bowen, 853 F.2d 643, 647 (9th

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Cir. 1987)). Likewise, the opinion of an examining physician is typically

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entitled to greater weight than that of a non-examining physician. Pitzer v.

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Sullivan, 980 F.2d 502, 506 (9th Cir. 1990). Whether an ALJ has properly

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rejected a medical opinion—the source of the opinion; contradictory opinions

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in the record; and supporting medical evidence are all considered. The

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examining physician’s opinion can alone constitute substantial evidence,

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where it rests on that physician’s own independent examination of the

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[Plaintiff]. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).

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Here, the ALJ gave great weight to Dr. Sabourin, M.D., the examining

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orthopedic consultative examiner. On July 12, 2016, Dr. Sabourin conducted

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an orthopedic consultation of Plaintiff. (AR 533). Dr. Sabourin observed

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Plaintiff was “alert” and sits and stands with normal posture. “There is no

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evidence of any tilt or list, and [she] sits comfortably during the

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examination.” (Id.) “[T]he Plaintiff can rise from a chair without difficulty.”

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(Id.). Plaintiff walks without a limp and is able to do toe heel and walking.”

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(AR 535). Dr. Sabourin’s impression was that Plaintiff had degenerative disk

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disease, status post apparent multilevel fusions and laminectomy; history of

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spinal fluid leak, status post reparative surgery, chronic cervical strain and
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sprain. (AR 537). Dr. Sabourin opined that Plaintiff had “rather significant

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problems with her low back, with a failed back syndrome after a series of four

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surgeries on the lumbar spine.” (Id.). He also noted that Plaintiff had “some

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mild neck problems” which he didn’t consider too serious based upon his

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examination. (Id.). Dr. Sabourin’s overall impression was that she had

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significant limitations due to her back problems. (AR 538). He concluded:

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She could only lift or carry 20 pounds occasionally and 10 pounds
frequently. She has no gross neurological deficit other than a
small patch of numbness. [S]he could stand and walk up to 6
hours of an 8 hour workday with those small weights. She could
sit for 6 hours of an 8 hour workday. Push and pull limitations
would be equal to lift/carry limitations. She could climb, stoop,
kneel, and crouch however only occasionally. She has no
manipulative limitation. She is not using assistive devices to
ambulate at this time. (Id.)

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The ALJ found Dr. Sabourin’s opinions consistent with the objective

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medical record presented. (AR 17). According to the ALJ, Dr. Sabourin’s

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opinion was given great weight because “the opinion is supported by the

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consistency with the record as a whole”; “consistent with the opinions of” the

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State Agency consultants; and because he has an “understanding of Social

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Security disability programs and their evidentiary requirements.” (Id.).

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Plaintiff contends that Dr. Sabourin’s opinion “is not based on a review

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of the case record or any medical reports.” (ECF 12 at 5). The Plaintiff

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argues that without the case record Dr. Sabourin’s opinion is a “one-day

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snapshot based on a limited one-time examination.” Id. Plaintiff also points

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out, as noted above, that the ALJ gave the CE’s opinion great weight because

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it was “based on a review of the medical evidence” and it is not known

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whether the ALJ would have the made the same finding “if he knew that he

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did not review any medical records.” Id.
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Defendant argues that “Dr. Sabourin’s report contained significant

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information regarding his independent examination of Plaintiff, all of which

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Plaintiff ignores in her Motion but serves as the basis for his opinion.” (ECF

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14-1 at 5). Defendant also contends that Plaintiff has not presented any

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“significant or critical treatment records” not provided to Dr. Sabourin and

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which could have changed his opinion. (Id. at 7).
According to Defendant, the ALJ “described at length Dr. Sabourin’s

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objective findings from his physical examination of Plaintiff.” (Id. at 9).

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Further, Defendant notes that “no physician ever opined [Plaintiff] had

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greater limitations.” (Id.).
Contrary to Plaintiff’s argument, the ALJ did not improperly assign

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great weight to Dr. Sabourin’s opinion. In reaching his conclusion the ALJ

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pointed out findings from the record evidence consistent with Dr. Sabourin’s

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findings. For example, Dr. Imran Ahmed, M.D., Plaintiff’s physical therapist,

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found Plaintiff’s rehabilitation potential to be “good” and she “remained

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independent in activities of daily living and ambulation. (AR 657). The ALJ

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also cited to similar findings in Dr. Sabourin’s report and other record

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evidence.4 Both reports note that Plaintiff’s main complaint is chronic low

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back pain radiating into her left leg. (AR 533, 570). Additionally, both reports

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acknowledge Plaintiff also showed consistency in her posture and normal

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gait. (AR 535, 570). This record evidence demonstrates that Dr. Sabourin’s

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opinion was based on his independent clinical findings and consistent with

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the objective record presented. Thus, Dr. Sabourin’s opinion may serve as

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substantial evidence. See Lester, 81 F.3d 832.

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The ALJ mistakenly credited Dr. Miller with the medical records in his citation at AR
569, however, those records were created by Andrew Saurin, PA.
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For these reasons, it is recommended that Plaintiff’s allegation that the

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ALJ erred in assigning great weight to Dr. Sabourin’s opinion be denied. See

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Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (“[T]o the extent that [the

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non-treating physician’s] opinion rests on objective clinical tests, it must be

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viewed as substantial evidence that [Plaintiff] is no longer disabled.”)

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2. Adverse Credibility Determination

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As reflected in Plaintiff’s motion for summary judgment, the second

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disputed issue raised by Plaintiff is whether the ALJ failed to articulate clear

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and convincing reasons for rejecting Plaintiff’s pain and limitation testimony.

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In Lingenfelter v. Astrue, 504 F.3d 1028, (9th Cir. 2007), the Court of

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Appeals summarized the ALJ’s task with respect to assessing credibility in

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the context of social security appeals:

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To determine whether a [Plaintiff’s] testimony regarding
subjective pain or symptoms is credible, an ALJ must engage in a
two-step analysis. First, the ALJ must determine whether the
Plaintiff has presented objective medical evidence of an
underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged. The Plaintiff,
however, need not show that her impairment could reasonably be
expected to cause the severity of symptoms she has alleged; she
need only show that it could reasonably have caused some degree
of symptom. Thus, the ALJ may not reject subjective symptom
testimony simply because there is no showing that the
impairment can reasonably produce the degree of symptom
alleged.
Second, if the Plaintiff meets this first test, and there is no
evidence of malingering, the ALJ can reject the Plaintiff’s
testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so….
Lingentfelter, 504 F.3d at 1035-36 (internal citations omitted).
In weighing a Plaintiff’s credibility an ALJ may consider, among other
things, the Plaintiff’s “reputation for truthfulness, inconsistencies either in
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the Plaintiff’s testimony or between her testimony and her conduct, Plaintiff’s

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daily activities, work record, and testimony from physicians and third parties

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concerning the nature, severity, and effect of the symptoms alleged by

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Plaintiff.” See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).

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The court may not second guess an ALJ’s credibility finding if it is supported

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by substantial evidence in the record. Id.

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a. Objective medical evidence

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Once a Plaintiff “produces objective medical evidence of an underlying

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impairment, an ALJ may not reject a Plaintiff’s subjective complaints based

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solely on a lack of medical evidence to fully corroborate the alleged severity of

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pain.” Burch v. Barnhart, 400 F.3d 676,680 (9th Cir. 1991) (internal citations

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omitted). “Although lack of medical evidence cannot form the sole basis for

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discounting pain testimony, it is a factor that the ALJ can consider in his

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credibility analysis.” Id.

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Here, the ALJ opined that the Plaintiff’s statements concerning the

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intensity, persistence and limiting effect of [her] symptoms [were] not

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entirely consistent with the medical evidence and other evidence….” (AR 14).

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The ALJ then cited to Plaintiff’s “longitudinal” medical record which included

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the following:

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2003: Plaintiff underwent a laminectomy at L5 through S1 and has
severe degenerative disk (sic) in that area. (AR 288).
2013: May 20, 2013, Plaintiff had revision laminectomies and medial

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forminotomies, L4-5 and L5-S1, left greater than right. Excision of left L4-5

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synovial cyst. Excision of forminal disc herniation left L4-5. Placement of

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Mazur robotically-assisted pedicle screws, bilateral L4-5 and L5-S1.

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Posterolateral fusion with bone morphogentic protein (BMP) allograft and

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local autograft, L4-5 and L5-SI. Transforminal inner body fusion left L4-5
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and L5-S1, with PEEK cages and demineralized bone matrix (DBM). (AR

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374).

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2014: November 17, 2014, Plaintiff had an anterior retroperitoneal

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discectomy and fusion via left lateral approach (XKL) and revision

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laminectomies and forminotomies in the left L4-5 and left L5-S1, right L4-5.

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(AR 15, 415-417). December 4, 2014, Plaintiff underwent surgery for a

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repair of a dural tear of the lumbar spine. There were no reported

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complications. (AR 15, 412). The ALJ stated that a review of the “[p]ost-

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surgical follow up notes showed minimal objective findings in contrast to

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[Plaintiff’s] subjective complaints.” (AR 15).
2015: The ALJ noted that in April—June 2015, Plaintiff was walking

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around the neighborhood and rated her pain at 5/10. (AR 16). The ALJ cited

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to other findings from that time period including no gait instability, a

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negative 14-point review of systems in June 2015 vs. the same review in April

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2015. (AR 16, 398).

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2016: The ALJ cited to pain management treatment beginning in

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February 2016. As a result of showing reduced range of motion in the lumbar

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spine with tenderness to palpitation and a positive straight leg (left) raise

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test, she received trigger point injections. As the ALJ noted “by the following

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month she reported pain relief with her medication regimen and that aqua

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therapy was going well.” (AR 16, 589). In December 2016, the ALJ cited to a

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follow up examination showing “mild findings.” Plaintiff was responding well

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to physical therapy and injections “and denied any new extremity numbness

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or weakness.” (AR 16). The ALJ also noted Plaintiff’s report showed her “toe

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standing and squatting was intact.” (AR 16, 570). Additionally, Dr. Miller (a

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treating physician) found she was not in acute distress and that her physical

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therapy was going well.” (Id.). Dr. Miller also noted her post-laminectomy
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syndrome was stable. (Id.).
On this record, the ALJ reasonably concluded that the objective record

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evidence did not support the severity of Plaintiff’s alleged impairments. This

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constituted a legally sufficient reason on which the ALJ could properly rely in

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support of his adverse credibility determination. See, e.g., Molina v. Astrue,

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674 F.3d 1104 at 1113 (9th Cir. 2012) (ALJ properly rejected claimant’s

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testimony in part because it was inconsistent with medical evidence in the

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record).

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b. Activities of Daily Living

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The other stated reason on which the ALJ based his adverse credibility

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determination was that Plaintiff did not show a “consistent restriction of her

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activities of daily living which corresponds to the alleged severity of her

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impairments.” (AR 18). According to the Ninth Circuit there are two

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grounds for using daily activities to form a basis of an adverse credibility

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determination. Evidence of the daily activities either (1) contradicts the

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Plaintiff’s other testimony, or (2) meets the threshold for transferable work

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skills. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).

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Here, the ALJ appears to rely on the ground that Plaintiff’s daily

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activities contradict the Plaintiff’s other testimony. For example, the ALJ

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noted that Plaintiff testified she used a cane but no doctor has prescribed a

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cane for ambulation. (AR 18). The ALJ also pointed out that her medical

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records showed she walked without an assistive device (AR 363, 400). The

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ALJ cited to Plaintiff’s testimony that she tries to do household chores,

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including dishes and some cooking. She also does some grocery shopping with

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her husband. (Id.). The ALJ also cited to record evidence that she is able to

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go out independently and can drive a car. (Id., 534). After a short recitation

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of these facts, the ALJ concluded “[d]espite the [Plaintiff’s] allegations that
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she is heavily limited in her daily activities, the medical evidence shows that

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she is physically able to do a number of Activities of Daily Living.” (AR 18).

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It is well settled that:

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[w]hile a claimant need not vegetate in a dark room in order to be
eligible for benefits, the ALJ may discredit a claimant's testimony
when the claimant reports participation in everyday activities
indicating capacities that are transferable to a work setting[.]
Even where those activities suggest some difficulty functioning,
they may be grounds for discrediting the claimant's testimony to
the extent that they contradict claims of a totally debilitating
impairment.

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Molina, 674 F.3d at 1112-13 (citations and internal quotation
marks omitted).
A review of the ALJ’s statements regarding Plaintiff’s activities of

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daily living demonstrates significant testimony was omitted from the ALJ’s

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findings, regarding Plaintiff’s physical abilities. For example, Plaintiff

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testified that her son and his wife live with them because her daughter-in-

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law helps around the house. (AR 58). Plaintiff also stated that she can do “a

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little bit of the dishes, but when it’s a lot, I can’t do it because when I’m

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standing over the sink, it hurts my back so I have to stop.” (Id.). Plaintiff

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further testified she does no laundry and her husband has been doing most of

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the cooking. (Id.). She testified that she “can’t bend down” to get her shoes

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and socks on and she uses a grabber to pick things up off the floor (AR 60,

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58). In addition, she testified that her husband helps her with showering the

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lower part of her body because of the bending required. (AR 61). Plaintiff

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also testified that she does have a license to drive but the only time she does

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so is when her husband cannot drive her to her medical appointments. She

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further noted that if she has to drive she cannot take her medication. In

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response to the ALJ’s question about how she got to her hearing, she testified
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that her husband drove her. (AR 67).

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Defendant cites to the ALJ’s reference to Plaintiff’s use of a non-

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prescribed cane for ambulation as further evidence that her daily activities

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support the ALJ’s adverse credibility finding. Defendant argues that the ALJ

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“noted that Plaintiff’s testimony regarding the necessity of a cane was

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inconsistent with statements from physicians that she did not use or need a

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cane.” (ECF 14-1 at 15). A review of the record transcript shows Plaintiff

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acknowledged her cane was never prescribed “but it just helps.” (AR 57).

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She testified she can walk for short periods without it, but after her surgery

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she fell because she can’t lift her legs high and she fell over a little step in her

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house, so she uses a case for ambulation on as needed basis. (Id.). Plaintiff’s

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fall which occurred on November 17, 2013, was documented by her treating

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physician in November 19, 2013. (AR 365).

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Notably the ALJ recognized Plaintiff’s problems with stairs because he

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stated “the Plaintiff testified at the hearing that she had difficulty with

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stairs. As such the undersigned has taken into consideration and

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incorporates occasional climbing of stairs.” Based on this record evidence, it

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would be error to support his adverse credibility determination based in part

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on Plaintiff’s cane use.

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The Court finds that the ALJ’s reliance on the specified daily activities

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did not constitute a clear and convincing reason upon which the ALJ could

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properly rely in support of his adverse credibility determination. Plaintiff’s

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testimony combined with the relevant record evidence contradicts the ALJ’s

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opinion that “she is physically able to do a number of Activities of Daily

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Living.” (AR 18). “The Social Security Act does not require claimants to be

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utterly incapacitated to be eligible for benefits, and many home activities

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may not be easily transferable to a work environment where it might be
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impossible to rest periodically or take medication.” Fair v. Bowen, 885 F.2d

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597, 603 (9th Cir. 1996) (internal citations omitted). Evidence that Plaintiff

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did some chores that did not take up a substantial part of the day did not

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detract from her credibility. See Vertigan v. Halter, 260 F.3d 1044, 1049-50

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(9th Cir. 2001). Based on the record in this case, the ALJ’s reliance on the

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specified daily activities was legally insufficient by itself.

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The ALJ based his adverse credibility determination on two grounds: 1)

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Plaintiff’s allegations of pain and impairment were inconsistent with the

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medical evidence; and 2) Plaintiff’s specified activities of daily living rendered

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her allegations of disabling symptoms and limitations not fully consistent

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with the record. (AR 14-18).

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Since the Court finds that that ALJ’s reliance on specified “Activities of

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Daily Living” was legally insufficient, his sole remaining reason premised on

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a lack medical support is legally insufficient to support an adverse credibility

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determination. “[A] finding that the claimant lacks credibility cannot be

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premised wholly on a lack of medical support for the severity of his pain.”

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Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997);

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Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (“it is the very

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nature of excess pain to be out of proportion to the medical evidence.”).

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Under these circumstances, the Court is unable to affirm the ALJ’s
adverse credibility determination.

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III. CONCLUSION

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The law is well established that the decision whether to remand for

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further proceedings or simply to award benefits is within the discretion of the

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Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990);

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McAllister v. Sullivan, 888 F.2d 599,603 (9th Cir. 1989); Lewin v. Schweiker,

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654 F.2d 631, 635 (9th Cir. 1981). Remand for further proceedings is
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warranted where additional administrative proceedings could remedy defects

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in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir.

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1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is

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appropriate where no useful purpose would be served by further

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administrative proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir.

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1980); where the record has been fully developed, Hoffman v. Heckler, 785

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F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay

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the receipt of benefits to which the disabled plaintiff is entitled, Bilby

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v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985).

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The Court is mindful of Ninth Circuit authority for the proposition that,

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where an ALJ failed to properly consider either subjective symptom

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testimony or medical opinion evidence, it is sometimes appropriate to credit

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the evidence as true and remand the case for calculation and award of

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benefits. See, e.g., Garrison v. Colvin, 759 F.3d 995, 1019-21 (9th Cir. 2014).

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However, as noted previously, the Court has found here that the ALJ did

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partially support his adverse credibility determination based on lack of

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support in the objective medical evidence. Accordingly, the Court agrees with

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Plaintiff that this is an appropriate case to remand “for the correction of the

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legal errors.” (ECF 12 at 15).

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For the foregoing reasons, this Court RECOMMENDS that Plaintiff’s

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motion for summary judgment be GRANTED in part, that the

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Commissioner’s cross-motion for summary judgment be DENIED, and that

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Judgment be entered reversing the decision of the Commissioner and

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remanding this matter for further administrative proceedings pursuant to

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sentence four of 42 U.S.C. § 405(g), “The court shall have power to enter,

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upon the pleadings and transcript of the record, a judgment affirming,

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modifying, or reversing the decision of the Commissioner of Social Security,
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1
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with or without remanding the cause for a rehearing.”
IT IS HEREBY ORDERED that any written objection to this report

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must be filed with the court and served on all parties no later than

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September 2, 2019. The document should be captioned “Objections to Report

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and Recommendations.”

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IT IS FURTHER ORDERED that any reply to the objections shall be

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filed with the Court and served on all parties no later than September 9,

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2019. The parties are advised that failure to file objections within the

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specified time may waive the right to raise those objections on appeal of the

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 19, 2019

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